|Appellate court rule gets new weight|
|'Unpublished' decisions can now be used in other cases|
By Josh Richman
Oakland Tribune - September 22, 2005
federal courts' top policy-making body approved a new rule Tuesday in
Washington, D.C., to let attorneys cite appellate courts' "unpublished"
decisions as precedent.
It sounds dry, but it's potentially a radical change in how the courts operate.
For years, a huge percentage of appellate decisions have been issued as unpublished, meaning they couldn't be used as examples to bind or guide lower courts. Some judicial officials claimed unpublished rulings are vital because they keep the appellate courts' huge caseloads flowing, but foes claimed the practice promotes sloppy rulings and judicial laziness free of public or legislative scrutiny.
The Judicial Conference of the United States' decision Tuesday to allow those decisions' citation as precedent is a victory for a pair of Emeryville attorneys, brothers who've made this issue a decade-long personal crusade during the past decade and even used it as a platform plank in three bids for public office.
"I'm gratified ... a key element of our democratic process has been restored," said Mike Schmier later Tuesday, adding that unpublished opinions have been breeding grounds for decisions that make a mockery of the law.
"When people's lives get hit by these guys that don't follow the rules, its devastating," he said, likening it to "Peanuts" character Lucy pulling the football away from Charlie Brown's kick just in time to send him flying. "It just knocks the wind out of your sails."
The rule now goes to the U.S. Supreme Court, which has until next spring to decide whether to report it forward. Schmier said the high court usually adopts what the Judicial Conference has passed. After that, Congress would have a chance to raise any objections — Schmier said it hardly ever does — before the new rule takes effect Jan. 1, 2007. It'll apply only to decisions issued from that date forward.
The federal judiciary's Advisory Committee on Appellate Rules voted April 18 to approve this rule. Among committee members voting in favor of it was U.S. Circuit Judge John Roberts, whose nomination as U.S. Chief Justice now awaits Senate confirmation.
The importance of respecting precedent — in legal terms, stare decisis — was a pivotal topic at Roberts' confirmation hearings last week, as Democrats pressed him on whether he'd hew to precedents on issues such as privacy, abortion and Congress' authority.
Mike Schmier made his fight against unpublished decisions a platform plank in his 1998 and 2002 Democratic primary bids for state Attorney General — he was defeated both times by Bill Lockyer — and in his 2000 Democratic primary run for the U.S. Senate against incumbent Dianne Feinstein.
His lawsuit to stop unpublished decisions by California's appeals courts was dismissed; the federal rule would have no direct effect on state courts.
But Mike Schmier noted "California appellate courts upheld their no citation rule on the basis that the 9th Circuit does the same thing. How will they support their no citation rule now?"
Contact Josh Richman at email@example.com.